What can happen when a parent dies after separation

People in Black carrying flowers

A recent family law case heard in the Federal Circuit Court in Brisbane, Winship & Wrays [2018] FCCA 2632 (21 September 2018) provides an excellent example of parenting orders which may be made following the death of a parent following their separation from the other parent.

Importantly, it is an example that there is no presumption that a Court will order for a child to live with the surviving parent, as opposed to a non-parent, depending on the circumstances involved. As always, it is the best interests of the child which must be paramount, not the parent’s.

In this case, the mother (“Ms N”) and the father (“Mr Winship”) were the parents of a child known as “X” (aged 5 at the time of Trial). Ms N was diagnosed with breast cancer in 2015 and later diagnosed with terminal cancer in 2016.  In mid-2016 the mother’s sister, (“Ms Wrays”) moved into the family home to assist the parents care for X, whilst the father worked full-time and Ms N was undergoing cancer treatment.

The parents separated in January 2017 with the father leaving the family home. A few months later in mid-2017 the mother passed away.

At the time of the mother’s death a Domestic Violence Order was in place against the father, naming her and the child X as protected persons. This arose from an incident which took place shortly after separation in which the father was charged with burglary and assault in the former family home in the presence of the child.

Following the mother’s death, this DVO was withdrawn and replaced with another DVO naming the aunt (who had also allegedly been assaulted by the father) and the child X. The child at this time remained living in the former family home with Ms Wrays.

The father then filed an Application for Parenting Orders seeking for the child to live with him and for him to have sole parental responsibility for the child.

The aunt Ms Wrays countered by filing an Application for the child to live with her and for her to have shared parental responsibility with the father.

The Court’s considerations

Ultimately the Court, in this case, found in favour of the aunt Ms Wrays, making orders that the child should live with her, that she should have sole parental responsibility, and that the father should spend time with the child every alternate weekend and half of all school holidays, special occasions and so forth.

In coming to this conclusion the Court very carefully considered the evidence before it. Whilst it found that both the aunt and the father had loving, strong bonds with the child, the father had a history of family violence, he had no insight into how the family violence perpetrated by him had impacted the child, he had not completed his anger management program, he had repeatedly been evasive in Court, he did not have secure accommodation and lived in multiple residences, and he was estranged from both his own family and the mother’s family.

In contrast the aunt had good relationships with both the mother’s family and the father’s family, she had secure accommodation and support from her partner, she had a good understanding of the child’s particular special needs and good relationships with his treating practitioners, and was generally better equipped to provide the child with a stable, secure and safe family life and routine.


It is clear from this case that where there are competing applications for parenting orders, whether between biological or non-parents, the Court must always consider each case on its merits and with the best interests of the particular child or children involved as the paramount consideration.

It is also important to remember that even if a parent expresses their wish for a child to be cared for in a certain manner after their death, in a Will or other legal instrument, in the event that a dispute arises, the Family Court must ultimately decide each case based on the evidence before it at the current time.  

Shelley O’Connell

23 October 2018